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http://www.durhamwonderland.blogspot.com/
FRIDAY, AUGUST 16, 2013
An Update from St. Joe's
Over at Minding the Campus, I’ve analyzed two federal lawsuits filed by male students found culpable of sexual assault after college procedures (at St. Joe’s and Vassar) that failed to provide much, if any, due process. Today is the deadline for the defendants in the first suit, filed by Brian Harris against St. Joe’s and his accuser, Lindsay Horst. Horst’s attorney, Daniel Rucket, filed a reply yesterday urging dismissal of all claims in Harris’ lawsuit. (You can read the filing here; I’ll be analyzing the St. Joe’s reply when it comes in, at Minding the Campus.)
Rucket does not deny that Harris’ complaint accurately described the (wildly tilted) judicial “process” that St. Joe’s employs, which is “based on guidance from the United States Department of Education, Office for Civil Rights (‘OCR’).” (This guidance, of course, came from the 2011 “Dear Colleague” letter, which asserted that federal law requires universities to change their procedures in various ways to make it easier to find students culpable of committing sexual assault.) Rucket concedes that St. Joe’s policies prohibited Harris, like all accused students, from having an attorney represent him at the disciplinary hearing, or attend the hearing in any way. And Rucket observes that, as Harris’ complaint noted, St. Joe’s has structured a procedure in which“civil or criminal rules of procedure and evidence do not apply,” while allowing the school to consider hearsay.
But according to Rucket’s filing, these are all unobjectionable things, beyond the scope of the federal courts to review. It’s quite remarkable to see a private lawyer—much less a “Pennsylvania Super Lawyer,” as Rucket’s website notes he has been every year since 2010—celebrating the fairness of a process in which the accused is denied the right to counsel.
Intriguingly, seeking to protect Horst against a claim of defamation, Rucket subsequently claims that in Pennsylvania “quasi-judicial proceedings . . . include school administrative hearings and statements made that lead to such hearings.” In other words: the St. Joe’s disciplinary tribunal should be viewed as “quasi-judicial,” even though it denies accused students the right to counsel, doesn’t guarantee them the right to cross-examine their accuser, doesn’t follow civil or criminal rules or procedure, and allows hearsay.
Rucket argues that Harris has no legal claim to challenge the judgments made by St. Joe’s, no matter how unfair the university’s procedures. “Harris is attempting improperly to relitigate the finding of the [St. Joe’s tribunal] that Harris sexually assaulted Jane Doe, in Federal Court, which is not allowed.” Why? In part, because “there is a presumption of fairness in administrative proceedings which favors administrators.” Moreover, according to Rucket, federal courts should respect an assertion in the St. Joe’s handbook that “subsequent reviewers shall not determine anew whether there was a Community Standards violation.” How convenient as a way to shield any university from challenges to potentially unconstitutional behavior.
This line of argument, if upheld by the court, would render beyond judicial review the assault on due process for all college students accused of sexual assault, and Rucket asserts as much. At least with regard to students at private colleges, he claims that as “Harris’ guilt for the sexual assault has therefore been conclusively and finally decided by SJU at the [disciplinary] hearing,” a federal jury “cannot reconsider or alter that decision.” The power this line of interpretation gives to college disciplinary processes is extraordinary: once a private college brands a student a rapist, no matter how unfair the process the college utilizes, the student can never challenge the finding, as long as the college followed whatever unfair procedures it utilizes in sexual assault cases.
Absurdly, Rucket claims that the power he gives to the St. Joe’s process to avoid court challenge is equal opportunity: If, he notes, St. Joe’s had found that Horst hadn’t been sexually assaulted, and she had then filed a “lawsuit against Harris and SJU, Harris certainly would be making this exact same argument, that the findings of the [disciplinary tribunal] cannot be relitigated.” First: this claim will certainly come as news to the anti-due process “activists” glowingly profiled in the New York Times and Inside Higher Ed’s Allie Grasgreen, who have urged federal intervention to effectively relitigate a variety of campus decisions they opposed. Second: as Rucket well knows, even if Harris had been cleared by St. Joe’s, Horst still could have filed a criminal complaint with the police. Harris then could have been tried and, if convicted, sued.
In any event, the filing notes, even without the specific wording in the St. Joe’s handbook, Harris would have no case. Before choosing to attend St. Joe’s, Harris knew (or should have known) the university’s procedures for handling sexual assaults. Courts, Rucket suggests, can’t now intervene. (Oddly, the only two cases that Rucket cites to bolster his point come from Pennsylvania state courts; he doesn’t explain why these decisions should be treated as precedential in a federal lawsuit.) If Harris didn’t want to subject himself to the anti-due process approach used in his case, he shouldn’t have matriculated at St. Joe’s. But given that the “Dear Colleague” letter applies to virtually every university in the country, under Rucket’s viewpoint, the only realistic choice for a male student who wants to ensure that he has due process if accused of sexual assault would be not to attend college at all.
Finally, Rucket challenges Harris’ claim that he lacked an opportunity to cross-examine Horst, but, in any case, deems the matter irrelevant—in part because St. Joe’s doesn’t promise such a right and in part because the “Dear Colleague” letter “strongly” discourages granting such a right. To the best of my knowledge, this is the first time perhaps the most objectionable aspect of the “Dear Colleague” letter—its urging schools to set up procedures that deny an accused student the right to confront his accuser—has been cited, positively, in a legal filing.
Beyond legal arguments, the filing also provides Horst’s version of the evening in question, in which she alleges that she was assaulted while incapacitated. Rucket’s writings, however, corroborate several points from Harris’ filing, chiefly that:
Horst asked Harris to come to her dorm room and spend the night;
After the alleged assault (which Harris maintains was consensual intercourse), Horst left her room to go to the bathroom, but then returned to her room voluntarily, where she and Harris then spent the night;
Horst did not seek a medical examination after the incident;
Horst did not report the incident to police.
The filing describes Horst as “obviously intoxicated” on the evening in question. But since she didn’t go to the police or seek a medical exam, there’s no way to verify this claim.
Rucket does challenge the version of events presented in Harris’ complaint in one significant way. While he concedes that Horst invited Harris to come to her room for “cuddling” and to spend the night, according to the filing, this invitation had no sexual connotation.
Two final notes: (1) This is not the lacrosse case, in which overwhelming and unimpeachable evidence of actual innocence existed. Instead, the Harris case is an excellent demonstration of how due process-unfriendly college procedures—coupled with the newly-mandated preponderance-of-evidence (50.01%) standard—all but ensure that college structures can’t discover the truth in close or even somewhat close cases. And in a campus environment that’s overwhelmingly favorable ideologically to accusers, this is a dangerous thing.
(2) In his brief, Rucket asserts that Harris “was found guilty of (1) sexual assault.” Technically, colleges and universities can’t find anyone “guilty of sexual assault”: only the criminal justice process can do so. But in the real world, that’s a distinction that’s easily elided, since the stigma of being branded a rapist comes just as easily from a college process as from a jury verdict. That Horst’s own attorney—in a legal filing, no less—conflates the result of the St. Joe’s disciplinary process with that of a criminal trial illustrates why universities, when they consider issues that also qualify as criminal matters, need to provide due process to accused students. And if federal courts are the only mechanism for forcing universities to do so, then so be it.
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Mr. Johnson's post can be summed up in one word - rubbish. Apparently Mr. Johnson failed to notice that Daniel Rucket represents defendant Jane Doe and not plaintiff John Doe [1], defendant St John's University (SJU), or any other party in this case. John charged Jane with Defamation, False Light, Negligent Infliction of Emotional Distress, and Intentional Interference with Contractual Relations in response to her privileged and non-published claims made to University officials and to a fellow dorm resident in a shared bathroom following their sexual encounter in her dorm room. He claims the encounter was consensual, and she says otherwise.
After a full hearing and a subsequent rehearing following an appeal by John, the University Community Standards Board (CSB) found him guilty of violating two elements of the standard of conduct: disrespecting a fellow student and sexual assault. Finally, John asserts with absolute certainty that a series of text messages between the parties on the evening in question prove his side of the story beyond a reasonable doubt. At the rehearing, the CSB reviewed the messages and, after questioning both John and Jane about the stream of back and forth exchanges, found them far less compelling. (In my opinion, the messages are clearly subject to interpretation and support the proposition that Jane was "three sheets to the wind".)
In seeking immediate dismissal of the case against his client for failure to state a valid legal claim, Rucket provides three well-founded legal arguments for defeating John's claims, which include: (1) John's improper attempt to relitigate the underlying findings against him by SJU; (2) that SJU provided John the regulations and procedures set forth in the SJU Student Handbook; (3) that Jane's statements to a fellow student in the bathroom, the residence advisor, and other school authorities were absolutely privileged communications. On hearing Jane's cries, the student in the common dorm bathroom told Jane to report the incident to the resident advisor, an action clearly in furtherance of the school regulations. I'm not going to reiterate Rucket's arguments, but needless to say, they were all clearly articulated and well-founded in established law.
Mr. Johnson does make some absurd comments that I want to address. First, Johnson asserts:
Rucket does not deny that Harris’ complaint accurately described the (wildly tilted) judicial “process” that St. Joe’s employs, which is “based on guidance from the United States Department of Education, Office for Civil Rights (‘OCR’).” (This guidance, of course, came from the 2011 "Dear Colleague" letter, which asserted that federal law requires universities to change their procedures in various ways to make it easier to find students culpable of committing sexual assault.) Rucket concedes that St. Joe's policies prohibited Harris, like all accused students, from having an attorney represent him at the disciplinary hearing, or attend the hearing in any way. And Rucket observes that, as Harris' complaint noted, St. Joe’s has structured a procedure in which"[c]ivil or criminal rules of procedure and evidence do not apply," while allowing the school to consider hearsay.
And he goes on to claim:
But according to Rucket’s filing, these are all unobjectionable things, beyond the scope of the federal courts to review. It’s quite remarkable to see a private lawyer—much less a "Pennsylvania Super Lawyer," as Rucket's website notes he has been every year since 2010—celebrating the fairness of a process in which the accused is denied the right to counsel.
In fact, Rucket merely points out the simple fact that SUJ followed the rules, as they were set forth in the Student Handbook, and further that the rules and regulations comply with federal guidelines published by the Department of Education Civil Rights Division. Nowhere in the complaint does John claim that Jane had any power or control over the SJU rules and regulations or the OCR Dear Colleague letter, but without doubt, both John and Jane had a contractual obligation to follow the school's rules. Rucket does point out that while the court won't second guess the CSB finding, they can and frequently do address due process and compliance issues. However, these issues would clearly be between John Doe and the University.
Mr. Johnson goes on to proclaim: 'Intriguingly, seeking to protect Horst against a claim of defamation, Rucket subsequently claims that in Pennsylvania "quasi-judicial proceedings . . . include school administrative hearings and statements made that lead to such hearings."' I suppose that he would be surprised to learn that for the purposes of privilege in defamation lawsuits "quasi-judicial proceedings" are so recognized in virtually all states.
Later, Johnson states: 'The filing describes Horst as "obviously intoxicated" on the evening in question. But since she didn’t go to the police or seek a medical exam, there’s no way to verify this claim.' I can think of at least two: interview witnesses and read the text messages.
And, finally, Johnson makes this whopper:
In his brief, Rucket asserts that Harris "was found guilty of (1) sexual assault." [emphasis in original] Technically, colleges and universities can’t find anyone “guilty of sexual assault”: only the criminal justice process can do so.
The actual statement reads: 'Harris avers that, following the hearing, he was found guilty of (1) sexual assault and (2) disrespecting another student and was suspended from SJU. See Exhibit "A", ¶ 70.' Rucket simply quoted Dubrow.
Personally, I have serious reservations regarding any process that denies students due process when faced with charges that rightly belong in the criminal justice system, and I look forward to that issue being fully litigated. Jane does not need to be part of that battle - a battle that could go on for years. In the meantime, John has the option of returning to SJU next year. I hope he takes advantage of the opportunity. Potential employers will look at the degree, not the transgression. He can spend the year reflecting on why he chose to attend SJU, a Jesuit institution, in the first place.
In closing, I want to show you a picture. See the sign above the door handle? Yes, the one that reads, "Safe Zone". That's where Jane turned for help.
<picture removed>
1. The parties have agreed not to use the young woman's name, so in fairness to all, I have chosen to apply the old common law "share a bed, share a name" doctrine and refer to the plaintiff as John Doe.
Edited by sdsgo, Nov 23 2013, 11:03 PM. |
11:40 AM Jul 13